FF, R. (On the Application Of) v Director of Legal Aid Casework

For the purposes of paragraph 19(3) of LASPO, “benefit” has its ordinary broad meaning. It need not be financial or material, but it must be real and substantial, going beyond the sufficient interest required to bring representative judicial review proceedings. Psychological benefit or fulfilment of a moral obligation may qualify in an exceptional case, particularly when combined with other factors. Whether the potential benefit exists is a hard-edged question of law, although it requires evaluative findings of fact. The Director must consider the evidence and all relevant factors together. A decision based on an unduly narrow conception of benefit is unlawful.

FF, an asylum-seeker from Bahrain, sought civil legal aid to challenge the Home Secretary’s failure to deal properly with his request that a Bahraini royal be excluded from the United Kingdom. The Director accepted that the proposed judicial review satisfied the merits and cost-benefit requirements, but refused funding under paragraph 19(3) of LASPO, finding that FF’s moral concerns, personal commitment and psychological interests did not amount to a benefit.

The issue was whether the proposed proceedings had the potential to produce a benefit for FF within paragraph 19(3), and whether the Director had treated that requirement as a matter of discretion rather than law.

1. The claim for judicial review was upheld. The Director’s decision was quashed, and a declaration was made that the proposed judicial review was not excluded from civil legal aid by paragraph 19(3) of LASPO.
2. “Benefit” in paragraph 19(3) has its ordinary, broad meaning. It need not be financial or produce an improvement in material living conditions, but it must have reality and substance. It must go beyond the sufficient interest which may enable a citizen to bring representative public-interest proceedings.
3. The question whether proposed proceedings have the potential to produce a benefit is a mixed question of law and fact. The Director must find and evaluate the relevant facts before deciding whether the statutory criterion is met. The existence of benefit is a hard-edged question of law, not a matter left to the Director’s discretion, although factual findings attract the usual public-law deference.
4. A benefit which is psychological or involves fulfilment of a moral obligation may, in an exceptional case, satisfy paragraph 19(3), either alone or, more likely, with other factors. Such benefit must nevertheless go beyond the interest involved in purely representative litigation.
5. FF’s asylum status, continuing risks connected with the Bahraini regime, personal involvement in gathering evidence and pursuing accountability, emotional distress caused by the Prince’s visits, and moral obligations to alleged victims had to be assessed cumulatively. Although none might have sufficed alone, together they established the potential for a direct, personal and real benefit. The Director had applied too narrow a concept of benefit and had wrongly treated the issue as discretionary.